Defendant has appealed from his conviction on a trial de novo by the Law Division for operating a motor vehicle under the influence of alcohol contrary to N.J.S.A. 39:4-50. He was fined $1,000 plus court costs, his license was suspended for 10 years and he was sentenced to 180 days in the Morris County jail, to be served as 90 days of community service and 90 days in an in-patient alcoholic rehabilitation program.

The offense allegedly occurred in Mendham, New Jersey on March 26, 1983. Defendant had attempted to sell an old car that had been purchased by him at an auction sale. The car had practically no gas and, when a prospective purchaser took

it for a test drive, it ran out of gas close to defendant's home. Defendant unsuccessfully attempted to move the car under its own power, and then later without the key and in an admittedly intoxicated state, he had his mother use another vehicle to attempt to push the car in question back to his home. Since the car apparently was out of gas and may also have had its battery run down, it would not move. Due to the car's peculiarities, without the key the shift lever could be moved between "park" and "reverse," and when placed between these positions, the car could be rolled.*fn1 When defendant's mother attempted to push the car, however, her vehicle sustained damage due to the inability of defendant's car to move, since the gearshift lever had snapped back to "park."

One question raised by defendant is whether there was any basis for the trial judges to have found that he was behind the wheel, since no witness saw him there in his intoxicated state. The investigating officer testified that he concluded defendant was behind the wheel, or otherwise attempted to control its motion, when his mother tried to push the car. Defendant allegedly further told the officer that "he was being pushed by his mother." The inference that one would not have his car pushed while merely standing beside it, especially where the gearshift lever had to be held between the "park" and "reverse" position for the car to move, was entirely proper for the trial judge to make. Cf. State v. Reyes, 50 N.J. 454, 458-59 (1967).

The sole legal issue in this case is whether defendant's activities constituted "operation" of the vehicle in violation of N.J.S.A. 39:4-50(a), prescribing penalties for "a person who operates a motor vehicle while under the influence of intoxicating liquor. . . ." [Emphasis added].

There are but few New Jersey cases that have considered the issue of "operation." See State v. Daly, 64 N.J. 122 (1973); State v. Sweeney, 40 N.J. 359 (1963); State v. Jeannette, 172 N.J. Super. 587 (Law Div.1980); State v. Prociuk, 145 N.J. Super. 570 (Cty Ct.1976). State v. Sweeney established the principle that when one in a public place "turns on the ignition, starts and maintains the motor in operation and remains in the driver's seat behind the steering wheel, with the intent to move the vehicle," he "operates" the motor vehicle within the meaning of N.J.S.A. 39:4-50. Although the "intent" test was criticized in the dissenting opinion of Justice Francis in Sweeney and in the concurring opinion of Justice Clifford (with whom Justice Pashman joined), in State v. Daly, "intent" is the principal consideration to determine operation. In fact, in State v. Daly, where the driver sat behind the wheel with the engine running for a considerable length of time, using the engine only to power the heater in the car but with no intent to move the vehicle, the court found no violation of the statute.

State v. Prociuk noted that proof of operation may be provided by the defendant's statements, even though the car when found was inoperable in that it had run out of gas. State v. Jeannette involved the "operation" of a motorcycle by the defendant's coasting a short distance on the vehicle in neutral, without activating the motor. Defendant's girlfriend had taken the key from him so that he could not operate the vehicle in his intoxicated condition. The court nevertheless determined that the public was to be protected from the moving vehicle irrespective of whether it was powered by its engine or by gravity. This case is cited to us for the proposition that the vehicle must move in order that defendant be found guilty of violating the statute. We do not so read Jeannette.

Following Sweeney and Daly we determine that we must focus upon defendant's intent. In Daly, if defendant had been found in the stationary vehicle with the intent to move it, there is no ...

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